Criminal Procedure

119 terms by Lennyh1987 

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What are the four global issues having to do with "Search and Seizure"?

1. Whether a search or seizure is governed by the Fourth Amendment 2. Whether a search or seizure conducted with a warrant satisfies Fourth Amendment requirements 3. Whether a search or seizure conducted without a warrant satisfies Fourth Amendment requirements; and 4. The extent to which evidence obtained through a search and seizure that violates the Fourth Amendment is nonetheless admissible in court.

How do you determine if a search or seizure is governed by the Fourth Amendment?

1. Was the search or seizure executed by a government agent? 2. Was the search or seizure of an area or item protected by the Fourth Amendment? 3. id a government agent either (a) physically intrude on a protected area to obtain information; or (b) violate an individual's reasonable expectation of privacy in a protected area or item? 4. Did the individual subjected to the search or seizure have "standing" to challenge the government agent's conduct?

Was the search or seizure executed by a government agent? Who are government agents?

1) Publicly paid police whether on or off duty, 2) Private citizens if (and only if) they are acting at the direction of the police 3) private security guards but only if they are deputized with the power to arrest 4) public school administrators

What areas or items are protected from search or seizure by the Fourth Amendment?

The Fourth Amendment protects individuals from unreasonable searches and seizures of their 1) Persons (bodies) 2) houses (hotel rooms) 2a) Curtilage: area of domestic use immediately surrounding the house that is enclosed like enclosed back yard or front porch 3) Papers and 4) Affects (vehicles, purses, back packs)

What items are so public that there is no reasonable expectation of privacy and so there's no Fourth Amendment protection?

"Patty Achieved A Glorious Victory Over Her Opponents"
P: Paint Scrapings on outcome of car
A: Account records held by bank
A: Airspace, anything that can be seen while flying over public airspace
G: Garbage left at curb for collection
V: Voice
O: Odors, ex. emanating from car or luggage
H: Handwriting
O: Open fields, anything that can be seen in or across the open fields

GPS Tracking Device

Constitutes a physical instruction on an "effect" for purpose of obtaining information, was therefore a search governed by Fourth Amendment.

When does an agent's search or seizure of constitutionally protected are violate an individuals' reasonable expectation of privacy?

1. The individual had an actual/subjective expectation of privacy in area/items AND 2. the privacy expectation was "one that society recognizes as reasonable"

When is a police search presumptively unreasonable?

When a device that is not in public use is used to explore details of the home that officers could not have known without physical intrusion (ex. thermal imaging device, marijuana)

When does the individual subjected to the search or seizure have standing to challenge the government agent's conduct?

The individual's personal privacy rights must have been invaded, not those of a third party.
Owners of premises: always have standing
Renters of premises: always have standing
Overnight guests: have standing to challenge search of areas overnight guests can be expected to access
Person using other's residence solely for business purposes: No standing
Owner of the property seized: No standing unless you have reasonable expectation of privacy in the area where it was seized
Passengers in cars: No standing to challenge search of car. NY Distinction: If possession of weapon is attributed to passenger, passenger can challenge search

If the Fourth Amendment applies to a search or seizure, when is a warrant required?

If the Fourth Amendment applies to a search or seizure a warrant is required unless an exception is satisfied.

When does a warrant under which criminal evidence was gathered satisfy Fourth Amendment requirements?

1. If the warrant was issued by a neutral and detached magistrate 2. If the warrant was supported by probable cause and particularity 3. If the warrant was not supported by probable cause and particularity, then the police offers relied on the defective warrant in good faith. NY Distinction: NY rejects good faith doctrine 4. If the warrant was properly executed by the police.

When is a magistrate who issues a warrant NOT "neutral and detached"?

When her conduct demonstrates bias in favor of the prosecution.

What is probable cause for purposes of issuing a warrant?

Probable cause requires proof of a fair probability that contraband or evidence of crime will be found in the area searched.

Is hearsay admissible for purposes of establishing probable cause for issuing a warrant?

Yes

Can police rely on an informant's tip as basis for probable cause for issuance of warrant? [MBE]

Police may rely on information obtained through an informant's tip, even if the information is anonymous. Sufficiency rests on corroboration by police of enough of tipster's information to allow magistrate to make a common sense practical determination that probable cause exists based on a totality of the circumstances.

In NEW YORK, can police rely on an informant's tip as basis for probable cause for issuance of warrant?

New York applies the Aguilar-Spinelli test: the government must establish 1) the informant's basis of knowledge and 2) his or her reliability or veracity.

How is the "particularity" requirement satisfied for a search warrant?

The search warrant must specify 1) The place to be searched and 2) the items to be seized. *A general warranty that authorizes a fishing expedition in private areas that could not house the evidence for which there was probable cause to search does not satisfy particularity requirements.

[MBE] When will an officer's good faith reliance on a defective search warrant NOT overcome the constitutional defect?

1. The affidavit supporting the warrant application is so egregiously lacking in probable cause that no reasonable officer would have relied on it. 2. The warrant is so facially deficient in particularity that officers could not reasonable presume it to be valid 3. The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that were necessary to probable cause finding (not merely negligent) 4. Magistrate who issued warrant was biased in favor of prosecution.

What must police do to "properly execute" a search warrant?

1. They must comply with the terms and limitations of the warrant (only search those areas and items authorized by language of warrant, searching containers too small to hold the designated suspected stolen item are BEYOND the scope of the warrant, ex. iPad doesn't fit in wallet), and 2. They must comply with the knock and announce rule

What is the knock and announce rule?

In order to properly execute a warrant the police must "knock and announce" their presence and their purpose before forcibly entering the place searched, unless the officer reasonably believes that doing so would be 1) futile, 2) dangerous or 3) would inhibit the investigation.

When is a warrantless search permissible?

"Escapist" 8 exceptions
E: Exigent circumstances
S: Search incident to arrest
C: Consent
A: Automobile
P: Plain View
I: Inventory
S: Special Needs
T: Terry Stop and Frisk

What constitutes "exigent circumstances" for purposes of justifying a warrantless search?

1. Evanescent Evidence: evidence that would dissipate or disappear in time it would take to get warrant 2. Hot Pursuit of Fleeing Felon: Police can enter home of a suspect or a third party to search for a fleeing felon, during hot pursuit, evidence of crime discovered in plain view while searching for suspect is admissible 3. "Emergency Aid" exception: objectively reasonable basis for believing person inside is in need of emergency aid to address or prevent injury.

When is a search incident to arrest valid?

1. The arrest itself was lawful 2. The search is justified by officer safety and/or the need to preserve evidence 3. The search is contemporaneous in time and place with the arrest 4. Only the wingspan of the arrestee (body, clothing and containers within arrestee's immediate control) is searched, without regard to offense for which arrest was made NY Distinction: To search containers within wingspan, officer must suspect arrestee is armed

What is the permissible scope of an automobile search that is incident to a custodial arrest?

Police can search the interior cabin including closed containers but NOT the trunk. Once the officer has "secured" the arrestee (ex. handcuffing him and placing him in squad car) the officer can search the arrestee's vehicle only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made. NY Distinction: Once occupant is out of car, police cannot search containers inside vehicle.

What are the requirements for the "consent" exception to the warrant requirement for searches?

The consent must be voluntary and intelligent. The police do not need to tell someone that she has the right to refuse consent. The consent to search extends to all areas for which a reasonable officer would believe permission to search was granted.

What if the person who granted consent to police to search a certain area or item did NOT have actual authority to grant it?

The consent is still valid under the Fourth Amendment provided the officer reasonable believed the consenting party had actual authority (this is called apparent authority). Ex. consenting party referred to apartment with boyfriend as "ours," had key to apartment

When adults share a residence who can consent to search of the residence?

Any adult resident can consent to search of common areas, but if a co-tenant objects to search of areas over which they share dominion and control the search is not permitted.

What is the "automobile" exception to the warrant requirement for searches?

(Note: NOT the same as the search of automobiles incident to custodial arrest OR the Terry stop and frisk)
If police officers have probable cause to believe that contraband or evidence of crime will be found in the vehicle they can search the entire vehicle and they can open any package, luggage, or other container that may reasonably contain the items for which there was probable cause to search. This exception is justified by vehicles' ready mobility and individuals' lesser expectation of privacy in vehicles.

If the police pull someone over for a routine traffic stop but then acquire probable cause to search the vehicle for evidence of the crime, would the search be valid?

Yes. The officer does not need probable cause to search the vehicle "at the time the car is pulled over," provided he acquires it before initiating the search.

What are the three requirements for lawful seizure of an item in plain view (case of warrantless seizure)?

1. lawful access to the place from which the item can be plainly seen; 2. lawful access to the item itself; and 3. the criminality of the item must be immediately apparent.

What are the two most common contexts in which an "Inventory search" will occur?

1. Arrestees: when they are booked into jail 2. Vehicles: when they are impounded

When is an "inventory search" constitutional?

If 1) the regulations governing them are reasonable in scope 2) the search itself complies with those regulations and 3) the search is conducted in good faith, that is, it is motivated (subjectively) solely by the need to safeguard the owner's possession and/or to ensure officer safety.

What types of searches fall within the "special needs" exception to the warrant requirement for searches?

1. Random drug testing: approved for a) RR employees following impact accident b) custom agents responsible for drug interdictions; and c) public school children who participate in any extracurricular activities Note: Suspicionless drug tests NOT permitted for primary purpose of gathering criminal evidence for general use by law enforcement.
2. Parolees: suspicionless searches of parolee and his home permitted as condition of parole.
3. School searches: searches of the person and affects of public schoolchildren permissible to investigate violations of school rules, provided search is reasonable at its inception and not excessively intrusive in light of age and sex of student and nature of infraction 4: Border searches: neither citizens nor non-citizens have Fourth Amendment rights at border with respect to routine searches of persons and effects.

What is a Terry stop?

It is a brief detention or seizure for the purpose of investing suspicious conduct that can occur anywhere.

Terry stops: When are you seized for Fourth Amendment purposes?

When, based on the totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer's request to answer questions. Consider 1) whether officer brandished weapon 2) the officer's tone and demeanor 3) whether individual was told she had right to refuse.

When is a person seized when they are being pursued by a police officer?

MBE: Only if the person submits to the officer's authority by stopping or if the officer physically restrains him.
NY: Police pursuit is a seizure in and of itself.

Who is "seized" during a traffic stop? What can officer do during a traffic stop/what searches can be conducted?

The driver and the passengers are seized, so that means either can challenge the legality of the stop.
An officer can order both the drivers and the passengers out of the car.
A dog sniff of the vehicle is permissible if it does not prolong the stop unreasonably. Note: If the dog alerts, this will provide probable cause for an automobile search under the automobile exception.

What is a Terry frisk?

It is a pat down of the body and outer clothing for weapons that is justified by an officer's belief that a suspect is armed and dangerous.

What can be seized during a Terry frisk?

If, during a terry frisk, an officer finds something she reasonably believes to be a weapon it can always be seized. If officer finds something she is able to recognize as contraband "without manipulating the object" she can seize it. NY Distinction: Officers can seize an item only if it reasonably appears to be a weapon. Note: Bag of Cocaine/Talc, couldn't tell it was cocaine without manipulating it, so you can't seize it under Terry frisk, but if you were performing a search incident to an arrest, you have plenary authority to search the person's wingspan so you could seize the Cocaine.

Terry Stop and Frisk: What are Car "Frisks"?

When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin, limited to areas in which a weapon may be placed or hidden.

Terry Stop and Frisk: What is a "protective sweep"?

When making an in-home arrest, police may "sweep" the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety.

What is the evidentiary standard for performing Terry stops and frisks?

"Reasonable suspicion" which is LESS than probable cause.

How does the reasonable suspicion standard apply in Terry stops?

It requires specific and articulable facts that inform an officer's belief that criminal activity is present. Officer's subjective intent is irrelevant; concerned solely with objective reasonableness.

How does the reasonable suspicion standard apply to Terry frisks?

It requires specific and articulable facts that suggest that a suspect is armed and dangerous.

Can an informant's tip satisfy the standard of reasonable suspicion for purposes of Terry stops and frisks?

Yes, provided the tip contains sufficient predictive information, corroborated by the police, to establish the informant's reliability

What evidentiary standards apply in protective sweeps?

1) Officers may sweep the area immediately adjoining the place of arrest, provided there is reasonable suspicion that the house harbors a person who poses a danger to those on the arrest scene. 2) Sweeps of more remote areas are justified if officers have additional facts sufficient to allow a reasonably prudent officer to conclude that an individual who may threaten officer safety is present in the area swept.

What is the federal exclusionary rule?

Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated.

Exclusionary rule: Case-in-chief versus Cross-examination

Unconstitutionally obtained evidence is excluded from the prosecutor's case-in-chief only; it may be introduced to impeach the defendant's testimony on cross-examination.

Exclusionary rule: knock and Announce Violations

Failure to comply with the knock and announce rule does not require suppression of evidence that is subsequently discovered.

Exclusionary rule: Police error

To trigger the exclusionary rule, erroneous police conduct must be deliberate, reckless or grossly negligent. (ex. bookkeeping error that led to unlawful arrest merely simple negligence)

Exclusionary rule: Officers "reasonable" mistakes

Exclusionary rule does not apply to evidence erroneously obtained when executing a search warrant, provided officer's mistake was reasonable.

Fruit of the Poisonous Tree: What is direct evidence? What is derivative evidence?

Direct Evidence: unlawfully seized evidence that is directly linked to the constitutional violation (evidence fathered pursuant to search warrant that violates the Fourth Amendment)
Derivative evidence (fruit of the poisonous tree): Evidence (both physical and testimonial) that is obtained by exploiting prior unconstitutional conduct (ex. confession obtained as result of earlier unlawful arrest).

What does the fruit of the poisonous tree prevent?

It prevents the prosecutor from admitting evidence that was obtained by exploiting prior unconstitutional conduct in his case-in-chief.

How can the prosecutor nullify the "fruit of the poisonous tree" (general standard)?

Prosecutor must show a break in the causal link between the original illegality and the criminal evidence that is later discovered.

What three doctrines achieve the requisite break in the causal link in the "fruit of the poisonous tree" scenario, thereby permitting the fruit to be admitted?

1. Independent source: there is a source for the discovery and seizure of the evidence that is distinct from the original illegality 2. Inevitable discovery: the evidence would necessarily have been discovered through lawful means 3. Attenuation: passage of time and intervening events purged the taint of the original illegality and restore the defendant's freewill.

What are the four requirements for a valid wiretap warrant?

"Screen Telephone Calls Carefully"
S: Suspected persons: warrant must name the suspected persons whose conversations are to be overheard.
T: Time: wiretap must be for strictly limited time period.
C: Crime: there must be probable cause that a specific crime has been committed.
C: Conversations: the warrant must describe with particularity the conversations that can be overheard.

Eavesdropping: Unreliable Ear/False Friend Doctrine and Assumption of the Risk

If you speak to someone who has agreed to a wiretap or electronic monitoring, you have no Fourth Amendment claim; you assume the risk that the other party will not keep your conversation private.

When does an arrest occur?

Arrest: when police take someone into custody against her will for prosecution or interrogation.
De facto arrest: police compel someone to come to police station for questioning or fingerprinting.

What standard of proof applies to arrests?

Probable cause

For what offenses does the Fourth Amendment permit a custodial arrest?

All offenses, even those punishable by a monetary fine only (it doesn't violate the 4th amendment even if it violates state law)

When do you need an arrest warrant?

1) Absent an emergency, police officers need a warrant to arrest someone in her home 2) For misdemeanors, unless the misdemeanor was committed in officer's presence 3) If the person is in third party's home, officer needs an arrest warrant and a search warrant.

When do police not need an arrest warrant?

1) When someone is in a public place 2) When they have probable cause to believe the arrestee has committed a felony 3) If someone committed a misdemeanor in the officer's presence

Arrests: Common enterprise theory

In a traffic stop, where police discover evidence of crime suggesting common unlawful enterprise between driver and passengers, officer can arrest any or all of them based on reasonable inference of shared dominion and control over contraband.

What are the three federal constitutional challenges that can be brought to exclude a confession?

1) Fourteenth Amendment Due Process Clause 2) Sixth Amendment Right to Counsel 3) Fifth Amendment Miranda Doctrine. NY Addition: Can also challenge under NY's indelible right to counsel, which derives from Sixth Amendment of state constitution.

When can a confession be excluded under the Fourteenth Amendment Due Process Clause?

If the confession was involuntary meaning that the confession was the product of police coercion that overbore the suspect's will.

When does the Sixth Amendment Right to Counsel attach/apply? How does this right work to prevent admission of a confession?

Right to counsel attaches when defendant is formally charged, NOT upon arrest. It applies at all critical stages of prosecution after the filing of formal charges (arraignment, probable cause hearings, police interrogation).

Offense specific: it applies only to charges filed against you. It provides no protection for uncounseled interrogation for other uncharged criminal activity.

How it works: Incriminating statements obtained from defendant by law enforcement about charged offenses violate the Sixth Amendment if those statements are deliberately elicited and the defendant did not knowingly, intelligently, and voluntarily waive his right to have his attorney present.

What is New York's Indelible Right to Counsel?

1) It is in the Sixth Amendment of NY's constitution, it provides greater protection than the right to counsel in the federal constitution's Sixth Amendment.
2) It attaches not only at formal charging, but also whenever there is significant judicial activity before filing of accusatory instrument such that a defendant may benefit from the presence of counsel.
3) IF defendant is taken into custody for questioning on a charge and the police are aware that he is represented by counsel on that charge, they may not question him about that charge or any other matter without his attorney present.
4) If defendant is represented by counsel, waiver of the indelible right to counsel must take place in presence of the attorney.

Where do a suspects's Miranda rights come from?

The self-incrimination clause of the Fifth Amendment.

What are the four Miranda warnings?

1) The right to remain silent 2) anything you say can and will be used against you in a court of law 3) the right to an attorney 4) if you cannot afford one, an attorney will be appointed for you.

When are Miranda warnings necessary?

1) When the suspect is in custody and 2) the suspect is being interrogated.

Miranda doctrine: When is a suspect "in custody"?

If the atmosphere, viewed objectively is characterized by police domination and coercion such that the suspect's freedom of action is limited in a significant way.

Miranda doctrine: What is "interrogation"?

Any conduct the police knew or should have known was likely to elicit an incriminating response.
Note: Miranda does not apply to incriminating statements made spontaneously since they are not the product of interrogation. Note: Police posing as friend, not interrogation because the atmosphere lacks police domination and coercion.

What is the "public safety" exception to the Miranda doctrine?

If custodial interrogation is prompted by an immediate concern for public safety then Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect.

Miranda doctrine: Supposing the public safety exception does not apply, when will incriminating testimonial responses obtained through custodial interrogation be admissible?

When the officer, before initiating questioning, reasonably conveys to the suspect his core Miranda rights; and he thereafter obtains a valid waiver of a suspect's Miranda rights to silence and counsel

What are the requirements for a valid waiver of Miranda rights?

The waiver is 1) Knowing and Intelligent: the suspect understands the nature of the rights; and the consequences of abandoning them 2) Voluntary: it is not the product of police coercion. NY Distinction: If police use deception or concealment to keep parent away from child who is being interrogated, the child's waiver may be deemed invalid.

How can the waiver of Miranda rights be executed by the suspect?

The waiver need not be express; it can be implied by course of conduct that indicates the desire to speak with police interrogators.
If suspect has received and understood his Miranda rights, he waives his right to remain silent by making an uncoerced statement to the police.

Who has/What is the burden of proof as to waiver of a suspect's Miranda rights?

The prosecution bears the burden of proving a valid waiver of a suspect's Miranda rights by a preponderance of the evidence.

Miranda doctrine: How can a suspect invoke the right to remain silent? What happens after the right is invoked?

Suspects must unambiguously invoke their right to remain silent.

Once invoked, police officers must scrupulously honor the invocation. They cannot badger a suspect into talking. Police detectives must wait significant period of time before reinitiating questioning and must first obtain a valid Miranda waiver.

Miranda doctrine: How can a suspect invoke the right to counsel? What happens after its invoked?

The suspect's request for counsel must be sufficiently clear that a reasonable officer in same situation would understand the statement to be a request for counsel.
Once invoked, all interrogation must cease unless initiated by suspect.
This right is not offense specific: interrogation following request for counsel under Miranda is prohibited as to all topics outside presence of suspect's attorney.

Miranda doctrine: When does a suspect's request for counsel expire?

14 days, after which a waiver to the Miranda right to counsel is valid provided it is knowing, intelligent and voluntary.

Limitations on exclusionary rule's application in context of Miranda violations

1) Incriminating statements obtained in violation of Miranda are inadmissible in prosecutor's case-in-chief but may be used to impeach defendant's testimony on cross-examination, but NOT testimony of third party witness.
2) Failure to give suspect Miranda warnings does NOT require suppression of physical fruits of incriminating statements, provided statements are voluntary.
3) If statement is inadmissible due to Miranda violation, subsequent statements made after obtaining a Miranda waiver are admissible, provided the initial, non-Mirandized statement was not obtained through use of inherently coercive tactics offensive to due process, police tactics, offensive to due process.

Miranda doctrine & Exclusionary rule: If testimonial evidence that should have been excluded because of Miranda violation is improperly admitted must the guilty verdict be vacated?

The guilty verdict will stand if the government can prove, beyond a reasonable doubt, that the error was harmless because the defendant would have been convicted without the tainted evidence. Note: harmless error rule applies to improperly admitted evidence under Fourth Amendment as well.

What are the three types of pretrial identifications?

1) Line-ups: witness asked to identify perpetrator from a group
2) Show-ups: one-on-one confrontation between witness and the suspect
3) Photo arrays: witness is shown a series of photos and is asked if she sees the perpetrator among them.

Challenge to Pretrial identifications: Denial of the Right to Counsel

Fifth Amendment: No Fifth amendment right to counsel under Miranda doctrine for pretrial identification procedures.
Sixth Amendment: Right to counsel exists at line-ups and show-ups that take place after formal charging; however, no right to counsel at photo arrays.
New York: Additional protection; right to attorney at line-up conducted before the filing of formal charges if you are aware that you have counsel and you request that counsel be present.

Challenge to Pretrial identifications: Violation of Due Process

Pretrial identification procedure violates DPC of 14th Amendment when it is so unnecessarily suggestive that it creates a very substantial likelihood of irreparable misidentification.
Court must weigh reliability of a suggestive identification against its corrupting effects.

What is the remedy for a constitutional violation in pretrial identifications?

The witness's in court identification is excluded.

When will a witness's in court identification be admissible even though there was a constitutional violation in pretrial identification?

If the prosecution can prove that the identification is based on observations of the suspect other than the unconstitutional show-up, line-up or photo array.

Factors: 1) Witness's opportunity to view the D at the crime scene 2) certainty of the witness's identification; and 3) Specificity of description given to police.

What do grand juries do? Are there proceedings public? Do states have to use them as part of the charging process?

1) They issue indictments
2) They are secret proceedings
3) No and most states don't use them

New York: What must indictments by grand juries establish?

Indictments must establish all elements of the offense and provide reasonable cause to believe that the accused committed the offense.

What is the standard of proof for pretrial detention?

The government needs probable cause to bind a defendant over for trial and to detain him in jail before trial.

When is a detention/Gerstein hearing unnecessary to justify pretrial detention?

1) The grand jury has issued an indictment or 2) a magistrate has issued an arrest warrant.

What is a defendant's "first appearance"?

Soon after arrest, a defendant must be brought before a magistrate who 1) advises him of his rights 2) sets bails and 3) appoints counsel if necessary, 4) Bail decisions are immediately appealable.

What evidence must a prosecutor disclose to a criminal defendant before trial?

All material exculpatory evidence (Brady rule).

What does the right to an unbiased judge mean?

1) The judge has no financial stake in the outcome of the case; and
2) The judge has no actual malice towards the defendant

Juries: What are the fundamental protections criminal defendants have with respect to juries? When do criminal defendants have a right to a jury trial? What is the minimum number of jurors required? Is unanimity required?

1) Criminal defendants have right to fair and impartial jury.
2) Criminal defendants have right to jury trial if the maximum authorized sentence exceeds 6 months.
3) Fewest number of jurors allowed is 6. NY: requires 12, unless defendant waives requirement and can proceed to verdict with only 11 jurors participating in deliberations.
4) Unanimity is required only if 6 jurors are used; verdicts in 12 person juries need not be unanimous. NY: jury verdicts must be unanimous.

Juries: What is the "cross-sectional" requirement?

The pool from which the jury is drawn must represent a cross-section of the community. (The jury itself doesn't have to represent a cross-section of the community)

What are peremptory challenges? On what grounds may they NOT be exercised?

1) They permit both sides to exclude jurors without stating their reasons for doing so
2) Cannot be used to exclude prospective jurors on account of race or gender

When does a defendant's right to confront adverse witnesses under the Confrontation Clause of the Sixth Amendment not apply?

Where face-to-face confrontation would contravene important public policy concerns (ex. traumatizing child witness).

What must a defendant prove to show he was denied the right to effective assistance of counsel?

1) Deficiency requirement: Counsel's performance fell below an objective standard of reasonableness meaning he made errors so serious that he was not functioning as counsel; and 2) Prejudice requirement: But for the deficiency, the outcome of the trial would have been different.

What are the requirements for a valid guilty plea?

The plea must be voluntary and intelligent.

What is the plea-taking colloquy?

Before accepting the plea, the judge must conduct a colloquy in open court in which addresses on the record: 1) the nature of the charges, including required elements of the charged offense; and 2) the consequences of the plea

When can a defendant withdraw a guilty plea after sentencing?

Only if 1> the plea is involuntary due to a defect in the plea-taking colloquy; 2) there is a jurisdictional defect; 3) the defendant prevails on a claim of ineffective assistance of counsel or 4) the prosecutor fails to fulfill his part of the plea bargain

What does the Eighth Amendment prohibition against cruel and unusual punishment disallow?

Criminal penalties that are grossly disproportionate to the seriousness of the offense committed.

When would a death penalty statute violate the Eighth Amendment?

It it created an automatic category for the imposition of the death penalty.
In deciding whether to impose the death penalty, jurors must be allowed to consider all potentially mitigating evidence.

The Eighth Amendment prohibits the imposition of the death penalty against what three categories of defendants?

1) defendants with mental retardation 2) defendants who are presently insane 3) defendants who were under the age of 18 at the time the relevant offense occurred.

What is the relevant language of the double jeopardy clause of the 5th Amendment?

"nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb" by the same sovereign.

When does jeopardy attach for purposes of the double jeopardy clause?

Jury trial: When the jury is sworn.
Bench trial: When the first witness is sworn.
Guilty plea: when the court accepts the defendant's plea unconditionally.
Note: it does NOT apply to civil proceedings.

Double jeopardy prohibits a second prosecution/ second punishment for the "same offense." What is NOT the same offense?

Two offenses are NOT the same offense if each contains an element that the other does not.

New York: How does NY define same offense for purposes of NY's double jeopardy clause?

Transaction Test: requires defendant be charged with all offenses arising from any single transaction unless 1) the offenses have substantially different elements; 2) each offense contains an element not in the other and prevent different harms 3) one is for criminal possession and the other, use or 4) each offense involved harm to a different victim.

Are two offenses the "same offense" if only one offense has an element not contained in the other? (Greater and Lesser-Included Offenses)

Prosecution for the greater offense precludes later prosecution for the lesser-included offense and prosecution for the lesser-included offense precludes later prosecution for the greater offense.

Double Jeopardy prohibits successive prosecutions/punishments for the same offense only by the same sovereign. Who constitute the "same sovereign"? Who do not?

States and the municipalities within them: Same sovereign
State and federal government: NOT same sovereign
Different states: NOT same sovereign

What are the four exceptions to the double jeopardy rule that permit retrial?

1) A hung jury 2) a mistrail for manifest necessity 3) retrial after a successful appeal unless the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial; or 4) breach of the plea agreement by the defendant.

Who can invoke the Fifth Amendment privilege against compelled self-incriminating testimony?

Anyone (defendants, witnesses, parties to civil proceedings)

When can someone invoke the Fifth Amendment privilege against compelled self-incriminating testimony?

In any proceeding in which an individual testifies under oath. NY: Privilege cannot be asserted in a grand jury proceeding.

Is someone provides sworn testimony can they take the Fifth in a subsequent proceeding when asked the same question?

No. The privilege must be asserted at the first opportunity or it is forever waived.

This is a testimonial privilege, therefore it does NOT apply to:

The state's use of our bodies. Ex. Does not apply to forcible extraction of blood or urine samples for prosecutorial use in DUI case.

Can the prosecutor comment on defendant's decision not to testify or his invocation of rights to remain silent or counsel?

No the 5th amendment right against compelled self-incriminating testimony disallows negative prosecutorial comment on defendant's decision not to testify, on his invocation of his right to remain silence, or right to counsel.

What are the three ways in which the 5th amendment privilege against compelled self-incriminating testimony can be eliminated?

1) Grant of Immunity: Prosecutors can grant "use and derivative use" immunity, which bars the government from using your testimony or anything derived from it to convict you. NY Distinction: NY uses transactional immunity which shields witnesses from prosecution for any transaction they testified about in their immunized testimony. [Note: individual can be convicted based on evidence obtained prior to grant of immunity] 2) Taking the stand: By taking the stand, the defendant waives the ability to take the Fifth as to anything properly within the scope of cross-examination 3) Statute of Limitations: privilege is unavailable if the SOL has run on the underlying crime.

NY: Information on Application of Indelible Right to Counsel

For any statement made during a custodial interrogation to be admissible into evidence, the accused must first be advised of his Miranda rights and must validly waive those rights. To be valid, a waiver must be knowingly, voluntary and intelligence. Moreover, in New York, a waiver from an accused actually known to be represented by an attorney is valid only if the waiver is made in the presence of the attorney, but this rule does not apply to waivers on unrelated charges where the accused i released on the charge on which he is represented and later arrested on the unrelated charge.

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